Law Tips: Estate Planning for Digital Assets

ICLEF Law Tips # 47

Estate Planning for Digital Assets

Are you prepared to assist elderly clients or senior family members when it comes to an estate plan for digital assets? Planning for care of on-line accounts and information after death is a real necessity in this digital world. There are questions to answer before it’s too late. Recently, Keith Huffman, ICLEF faculty member, included a “hot tip” in his Elder Law presentation that raises the issues to be considered and provides some valuable assistance. I am pleased to include his advice in Law Tips.

What happens to your on-line assets when you go off-line?
First, what are they? Your digital world may include:  family photos, bank/investment records, passwords/answers to security questions, credit cards/bill payments, airline miles, email, video game characters, tax records…

How will your personal representative locate these assets?

Does your personal representative have the complete knowledge to access your accounts, or should you name a digital personal representative as well? 

Do you want your on-line social media accounts canceled immediately or do you have a special recorded message to be sent to your friends or enemies? 

There are now digital services that allow you to control this information after your death. These services include:

  • Legacy Locker  –  http://legacylocker.com
  • Data Inherit  –  http://www.securesafe.com/en/features/securesafe.html#field_5
  • Entrustet  –  http://www.securesafe.com/en/partners/entrustet.html
  • SecureSafe  –  http://www.securesafe.com/en/

Indiana is one of a few states that has a law allowing personal representatives to access electronic information after death:
IC29-l-13-1.1  Electronically stored documents of deceased.
Sec. l.l.(a) As used in this section, “custodian” means any person who electronically stores the the documents or information of another person

(b) A custodian shall provide to the personal representative of the estate of a deceased person who was domiciled in Indiana at the time of the person’s death, access to or copies of any documents or information of the deceased person stored electronically by the custodian upon receipt by the custodian of:

(1)  a written request for access or copies made by the personal representative, accompanied by a copy of the death certificate and a certified copy of the personal representative’s letters testamentary; or
(2)  an order of a court having probate jurisdiction of the deceased person’s estate.

(c) A custodian may not destroy or dispose of the electronically stored documents or information of the deceased person for two (2) years after the custodian received a request or order under subsection (b).

(d) Nothing in this section shall be construed to require a custodian to disclose any information:

(1) in violation of any applicable federal law; or
(2) to which the deceased person would not have been permitted access in the ordinary course of business by the custodian.

Does your attorney-in-fact have the right to access your digital information?

The National Conference of Commissioners on Uniform State Laws has a committee working on a draft of a bill about rights of a fiduciary to manage and distribute digital assets, copy or delete digital assets, and access digital assets.

Consider adding wording such as the following to your power of attorney documents:

Digital Assets. My Attorney-In-Fact shall have (i) the power to access, use, and control my  digital device, including, but not limited to, desktops, laptops, peripherals, storage devices, mobile telephones, smart phones, and any similar device which currently exists or exists in the future as technology develops for the purpose of accessing, modifying, deleting, controlling or transferring my digital assets, and (ii) the power to access, modify, delete, control, and transfer my digital assets, including, but not limited to, any emails, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, domain registrations, web hosting accounts, tax preparation service accounts, on-line stores, affiliate programs, other on line programs, including frequent flyer and other bonus programs, and similar digital items which currently exist or exist in the future as technology develops.

Thanks again to Keith Huffman for the Elder Law tips.  He and other experts in the field presented the two-day Elder Law Institute TM available as a Online/On Demand Seminar and as a Video Replay in several locations.  If you would like details on this CLE, click here.

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About our Law Tips faculty member:
Keith P. Huffman practices law with Dale, Huffman & Babcock, Bluffton, Indiana.  He received his undergraduate education from Adrian College, his legal education from Indiana University, and was admitted to the Bar in 1980. Mr. Huffman is a member of the National Academy of Elder Law Attorneys and previously served as the President of the Indiana Chapter of the National Academy of Elder Law Attorneys. He is also a member of the Ethics Committee at Bluffton Regional Medical Center, the Northeast Indiana Alzheimer’s Advisory Board, the Aging & In-Home Services Board of Directors, and the Fort Wayne Lutheran Hospital Institutional Review Committee.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. You are encouraged to comment below or contact Nancy. She enjoys hearing from readers and welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you on Law Tips.

ICLEF – Indiana Continuing Legal Education Forum, Indianapolis, IN

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